Splitting Regulation from Fraternity: Reforming the Law Association of Zambia

By E. Munshya LLM, MBA, MDIV 

The functions and objects of the Law Association of Zambia (LAZ) are very important in our system of law, government and politics. LAZ’s mandate is primarily derived from two statutes: The Law Association of Zambia Act and the Legal Practitioners Act. Under the LAZ Act, LAZ’s objectives can be broadly divided into the following:

  1. lawyer regulation, training and development;
  2. socio-lego-political engagement; and
  3. fraternal fellowship for lawyers.

LAZ’s regulatory objects are principally carried out through both the Legal Practitioners Committee and the Disciplinary Committee. The socio-political engagement is fulfilled by LAZ’s active socio-political engagement and lobbying on matters of legal importance. LAZ has been active in the advocacy for a new constitution and through this statutory mandate it was a very worthy and influential member of both the OASIS Forum and the Grand Coalition, two important lobby groups that advocated for a new constitution in Zambia. As a fraternal organisation for lawyers, LAZ advocates for camaraderie, self-care and represents lawyer interests before the government and the society. From 1973 to the present, LAZ has played a huge role not only in the legal development, but also in the socio-political engagement and thought. Particularly, from the advent of plural politics in 1990, LAZ has been at the forefront advocating for democratic change and reform. These are positively praiseworthy achievements.

In spite of all these obvious strengths, however, LAZ as it currently stands represents an untenable model that needs urgent reform. The model under which LAZ currently operates is no longer suitable for a bourgeoning democracy like ours. In all fairness, there is a need to reform it to make it more responsive to the needs of the public while at the same time maintaining both public and governmental confidence in an association that regulates legal practitioners. Particular areas of concern with the current LAZ legislative regime concerns its seemingly conflicting roles as a legal/lawyer regulator while at the same time serving as a fraternal organisation for the same lawyers. LAZ needs to be reformed by splitting the regulatory function (Legal Practitioners, Disciplinary, Education committees) from the fraternal and socio-political function (LAZ-at-large).

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Recent concerns over LAZ’s opinions and advisories are quite justifiable particularly when LAZ advisories do not represent views held by a good number of its members. Some positions taken by LAZ have even been held to be wrong by the Supreme Court of Zambia. This is not a good position to be in for a regulator of lawyers. The regulator of lawyers in Zambia should appear to be above board and should only go to court when the regulatory side of legal practitioners is at stake. The regulator should not go to court to argue about how much tax a person owes or does not owe. Recently, LAZ president Linda Kasonde issued some statements concerning Mr. Fred M’membe’s The Post tax problems with the Zambia Revenue Authority. LAZ members are reluctant to come out in the open to provide alternative understanding of issues to their organisation because LAZ is both their fraternal organisation and their regulator at the same time. The result is that LAZ members might feel muzzled and the LAZ senior leaders might get a pass by issuing statements under the cover of statutory protection even when their members believe otherwise. However, once regulatory functions are split from the fraternal functions, the regulatory side of LAZ can be run by an independent body that will concentrate on training, disciplining and regulating lawyers without having the pressure of the burdens and expectations that come from socio-political engagement (such as tax issues). The fraternal side of LAZ can continue and can encourage its members to participate, to criticize and to reach some consensus as the association participates in the socio-political destiny of the country.

This proposal is not by any means unusual. Currently, the Legal Practitioners Committee (LPC) is an influential committee within LAZ, tasked with lawyer regulation. All that is needed in my proposal is to delink this committee from the main LAZ body and give it statutory powers of its own to regulate and discipline lawyers away from the glare of socio-political interference. If the LPC were to be delinked, it would have its own management and it could comprise of members appointed or elected by legal practitioners themselves.

Once the LPC is delinked, LAZ can then concentrate its efforts into being the fraternal body that freely engages in the world of ideas. Such a new LAZ can criticise and be criticized without practitioners fearing for their lives. Additionally, such a LAZ can go to court and lobby for socio-political positions without associating those positions to the regulators.

The model I have proposed above seems to comport with modern legal arrangements in England and Wales and other commonwealth jurisdictions. Very rarely do regulators make news commenting on socio-political issues. This role is left to other fraternal legal organisations and associations of lawyers as the regulators concentrate on the actual regulation of lawyers. In Zambia’s sister jurisdictions such as Canada, as an example, lawyers are regulated by the respective provincial law societies while the Canadian Bar Association (CBA) remains a fraternal organisation of lawyers based on mutual and voluntary membership. In the United States, most jurisdictions have a similar arrangement. The American Bar Association (ABA) is a fraternal organisation whereas each state has its own bar regulators. Both the CBA for Canada and ABA for the USA freely comment on socio-political issues, lobby on behalf of lawyers, present and recommend training for lawyers, and provide a fellowship of some kind for lawyers. In South Africa lawyers also have a voluntary fraternal organisation while the regulatory side is handled by a different body depending on the province.

Such arrangements would be much more suitable for Zambia as well. In our democracy, it becomes necessary to split regulatory and fraternity functions of the Law Association of Zambia.

_________________________________________________________________

Suggested Citation: Munshya, E. (2016). Splitting Regulation from Fraternity: Reforming the Law Association of Zambia. Elias Munshya Blog. (www.eliasmunshya.org) June 30, 2016

 

 

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5 responses to “Splitting Regulation from Fraternity: Reforming the Law Association of Zambia

  1. Sport on Ba Munshyw. Hope people shall take the advise

  2. Stanley Siame

    you are spot on on the matter.I have been proposing the same model to Zambia Institute of Chartered Accountants (ZICA),That is both a regulator of professional accountants whether ACCA,CIMA,BAcc or CA qualified from any country and also mandated to train professional Accountants in Zambia,under the accountants Act of 2008.Hence presenting a serious governance issue and confict of interest to the bodies it regulates like ACCA,CIMA and providing regulation at the same time.

  3. Thanks for the feedback Goldenrail, the issue in Zambia is that the regulator is also the lobbyist and fraternal organisation. Any changes with LAZ will have to be done by the Zambian parliament as LAZ is a creature of statute. We will keep watching the situation.

  4. I read this post with great interest as a bar organization of which I am a member is addressing a similar proposal at the moment. In the United States, the state bars are set up in many different ways. (The ABA, while called a bar association in its title is really just a voluntary trade organization for attorneys who wish to be involved in that group.) A state bar membership is required to practice in that given state. Some states, like Oregon, have separate bodies to govern regulation and the social and continuing legal education aspects. Some bars, like Wisconsin, have the state supreme court handle lawyer discipline. And others, like California, manage all these aspects, regulation, social activities and continuing education, through a single bar entity. I do not know of any state bar organizations that do lobbying, but as their are plenty of other state bars that I know next-to-nothing about, it’s possible. As an active volunteer in the State Bar of California, I can say I greatly appreciate that we are prohibited from participating in lobbying activities or taking a position on political issues or pending legislation. In addition to providing the benefits Ba Munshya has outlined above with respect to concerns about disagreeing with the organizations official opinion, I find that this prohibition allows us to maintain a broader array of people in the voluntary aspects of the bar (the groups that organize programming, etc.). Because no one ever has to feel like they’re taking a view contrary to the established position, we are able to explore the law from more perspectives. It makes for a stronger association of more value to its members.

    I’ll continue to watch the developments with LAZ with interest.

    • Thanks for the feedback Goldenrail, the issue in Zambia is that the regulator is also the lobbyist and fraternal organisation. Any changes with LAZ will have to be done by the Zambian parliament as LAZ is a creature of statute. We will keep watching the situation.

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